I practice law -- criminal defense, civil liberties, and academic freedom/student rights cases. I'm a four-decade columnist and contributor to the Boston Phoenix, an alternative weekly, as well as an occasional contributor to The National Law Journal, Massachusetts Lawyers Weekly, The Wall Street Journal, The Boston Globe, and elsewhere. My books include Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009) and The Shadow University: The Betrayal of Liberty on America's Campuses (Harper Perennial, 1999; co-authored with Alan C. Kors). In 1999, Kors and I co-founded the Foundation for Individual Rights in Education (FIRE; www.thefire.org), a 501(c)(3) dedicated to the defense of individual liberties on campus. I live in Cambridge, Massachusetts with my wife, Elsa Dorfman, a portrait photographer.

Campus Censorship Breeds Societal Dysfunction

You can say things in Harvard Square that you can’t say in Harvard Yard. As both a long-time resident of the Harvard Square area of Cambridge, Massachusetts, and a 1967 graduate of Harvard Law School, this has been my semi-facetious but all-too-true mantra criticizing the sorry state of free speech and free thought at Harvard. And, alas, Harvard is not unique. At the overwhelming majority of colleges and universities throughout the country, merely voicing an unpopular opinion (or beingcritical of the campus administration) can easily cause a student, or even a faculty member, serious difficulty with the campus disciplinary tribunals.

This is the topic of Greg Lukianoff’s important new book: Unlearning Liberty: Campus Censorship and the End of American Debate.Lukianoff, a Stanford law graduate, is currently the president of the Philadelphia-based Foundation for Individual Rights in Education (FIRE, www.thefire.org), a non-profit devoted to promoting free speech, free thought, and fair procedures in American higher education. (Disclosure: I am co-founder and current chairman of the board of directors of FIRE.)

In Unlearning Liberty,Lukianoff spends considerable time and space laying out a wide variety of examples of campus censorshipthat, taken together, make the point that these are notisolated incidents. He describes the nature, uses, and impact, for example, of the infamous “speech codes” found nowadays on virtually all college campuses. Well over half of these codes would be demonstrably unconstitutional out in the real world. (FIRE’s most recent estimate is that 65%of liberal arts campuses have speech codes that violate constitutional free speech norms. And even the codes that pass constitutional muster seem oddly out of place on campuses purportedly devoted to vigorous discussion of controversial and often uncomfortable subjects.) Students are not only forbidden from saying things that might upset other students – particularly members of groups administratively deemed particularly vulnerable to hurt feelings – but prohibitions are oftenso vague that they easily trap the unwary student who becomes the target of an administrator or of another student.

Safeguarding this supposed right not to be offended are prohibitions such as those at Macalester College, the respected liberal arts college in Saint Paul, Minnesota, forbidding “speech acts which are intended to insult or stigmatize…or speech that makes use of inappropriate words….” Ohio State University is a bit more specific but no more comforting: “Do not joke about differences related to race, ethnicity, sexual orientation, gender, ability, socioeconomic background, etc.” warns its code. And Grambling State University in Louisiana has an email policy that prohibits “the creation or distribution of any disruptive or offense messages….”

Equally disturbing is Lukianoff’s description of various “sensitivity training” programs ubiquitouson campuses, although often well-hidden. He spends several pages describing a particularly horrifying “Residence Life” program carried on for years by the student life bureaucrats at the University of Delaware. UD’s mandatory ideological training program seems worthier of a prisoner of war camp than a college campus. Students were required to discuss their sexual identity with their resident advisors. They were exposed to “right beliefs” that might replace their “wrong” beliefs about a plethora of religious, political or otherwise quite personal subjects. The goal was to extirpate views deemed racist, sexist, homophobic, or otherwise “oppressive.” When reading about this program, one would be hard-pressed to make up such details. (The last great writer to do justice to such a task was George Orwell.) And those whose views were foundwanting were then subject to what was referred to as “treatment” by the Delaware Residence Life officials.

Lukianoff posits that thepervasive trend of campus censorship has had a wider effect on our society as a whole. He persuasively argues that, in short, we are entering an era of our own creation where the anti-liberty culture in Harvard Yard (part of the university) is dictating a similarly unfree culture in Harvard Square (part of the City of Cambridge). After all, we educate the next generation of leaders on these campuses. From this perspective, contemporary campuses can be seen essentially as incubators for a future society governed by censorship of iconoclasticideas and kangaroo courts that enforce those prohibitions. As Lukianoff’s title suggests, “campus censorship” produces, as students are sent out into the real world, an “end of American debate” that disrupts the gears and self-correcting mechanisms so essential for the functioning of our free society.

This set off a little light bulb in my head. As regular readers of “Injustice Department” know, I wrote a book of my own in 2009 titled Three Felonies a Day: How the Feds Target the Innocent, in which I describe how the U.S. Department of Justice prosecutes an alarming number of innocent people, using statutes so vague they are essentially incomprehensible. In Three Felonies, as in “Injustice Department,” I describe the “what” but do not much attempt to explain the “why.”

Unlearning Liberty gave me surprising insight into how it could be that such a large number of graduates of some of the nation’s leading colleges and law schools wind up as U.S. Department of Justice prosecutors doing so many awful things to so many often innocent people. I likewise gained insight into how some of the sharper legal minds now sitting on the federal bench do not blanch when innocent citizens are convicted of violating statutes and regulations that no normal person could possibly understand. Students, who get accustomed to the administrative tyranny that marks the vast majority of colleges, universities and graduate schools today, don’t have much adjusting to do when they gain, and abuse, real power of their own in the nation at large, including in its legislative chambers, executive offices, and courts.

An understanding of campus speech codes elucidates why undefined federal “mail fraud” statutes (the use of the mails to facilitate the commission of fraudulent activity, which is often undefined itself) do not strike either legislators or judges as unconstitutionally vague (that is, they do not give adequately clear warning as to what conduct is criminal). Legislators and judges have, after all, been to college. And those who have more recently graduated are more likely than their predecessors to buy into the notion that real and legitimate violations are stated in such codes. “Harassment” on campus is the equivalent of “mail fraud” out in the real world.

And Unlearning Liberty helps explain theinsufficient concern out in the real world at the increasingly invasive investigatory practices carried out on American citizens by such agencies as the FBI and the CIA. For instance, we have seen few, if any, credible primary challenges of senators and congressmen (on both sides of the aisle) who vote every year to reauthorize the National Defense Authorization Act (NDAA), despite its provisions authorizing the indefinite detention of American citizens. Nor have there been any repercussions whatsoever stemming from the National Security Administration’s warrantless wiretapping program that began under the Bush administration—an extension of which was signed into law by President Obama last month.

The law, as one friend of mine puts it, has become “silly putty,” and few have noticed the implications for both education and freedom. Lukianoff makes the point persuasively and in great detail that our institutions of higher learning are destroying our students’ sense of critical thinking and devotion to liberty—a phenomenon that translates into dysfunction in our society at large.

Lukianoff observes: “The Founding Fathers understood that the rights enshrined in the Bill of Rights would be best protected when individual citizens internalized these principles [of liberty] as personal values.” One rightly asks, upon reading Lukianoff’s profoundly disturbing disquisition on the culture of mindless totalitarianism that befouls the vast majority of our college campuses: how much longer do we have in which to restore liberty and sanity to higher education before our political and legal institutions reach the point of no return?

Anyone interested in learning how and why our prosecutorial and judicial systems have become so tolerant of palpable injustice should begin by reading Unlearning Liberty.

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